1. ' This revision application is directed against the judgment passed by the fourth Additional District Judge (South), Karachi, dated 18-1-1986, whereby the order passed by the Civil Court, dated 23-8- 1981 was set aside and the appeal filed by the respondent was allowed.
2. ' The facts of the case,' briefly stated, are, that the applicant is the owner of house bearing No.51-S- 889/MAC-II, Street No.16-A, Mehmoodabad, Karac4i. At the time of the purchase of the property, by the,applicant, the same was in possession of one Khadim Hussain who was a tenant therein. The applicant then filed an eviction application against the said Khadim Hussain seeking his ejectment on the ground of default and personal use. This application was allowed by the learned Re'nt Controller and consequently, execution application No.5 of 1981 wasfiled_egainst him and the possession of the premises was obtained by the applicant on 30-4-1981 through the Bailiff of the Court and 'with police raid'. Thereafter, the respondents filed a suit (No.2182/81) in the Court Of .The learned Sixth Senior Civil Judge, Karachi for possession and injunction against the applicant.
3. Alongwith the plaint an application under Order -XXXIX, rules 1 and 2, C.P.C. Was also filed, seeking_ interim relief in the matter. The applicant filed counter affidavit and alongwith- the same, he also filed an application under Order VII, rule 11, C.P.C., praying for rejection of the plaint on the ground that the suit was barred in view of the provisions of Order XXI, rule 103, C.P.C. Rule 103 of Order XXI, C.P.C. Reads as under as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite-party shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of .Any such matter."
4. ' This application was allowed by the trial Court and the plaint was rejected under the provisions of Order VII, rule 11, C.P.C. The respondents then filed appeal against the, order of the learned trial Court which was allowed by the learned Fourth Additional District Judge (South), Karachi vide judgment, dated 18-1-1986, and the order passed by the learned trial Court was set aside. The learned Appellate Court while allowing the appeal, came to the conclusion that the suit filed by the respondent was competent before the trial Court and the same was neither barred under Order XXI, rule 103, C.P.C. Nor section 12(2), C.P.C.
5. ' After hearing the learned counsel appearing on ,behalf of the respective parties in the case, I find the judgment of the learned Additional District Judge unexceptionable. Rule 103 of Order XXI, C.P.C.
6. Has already been reproduced above. It would also be advantageous to reproduce section 12(2) of the C.P.C. Which provides: "12. Bar to further suit.--(1) ......................... (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
7. ' A perusal of these provisions of section 12(2) shows, that they are applicable to suits. This is on account of the use of the words "judgment", decree" and "Court" in section 12(2). Similarly, rule 103 of Order XXI shows that it refers to the decrees of the Civil Courts, executable under the Code of Civil Procedure. Admittedly, the proceedings which were challenged by the respondents before the learned Civil Court Are pending under section 22 of the Sind Rented Premises Ordinance, 1979. The said section> at the relevant time and before its amendment by Sind Act I of 1986 read as follows:- "22. Execution of orders.--An order made by the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority."
8. Section 22, therefore, shows that execution of the orders passed by the Controller was to be governed purely by the said Ordinance of.1979 and not by Order XXI of the C.P.C. In any manner.
9. Such intention appears to be more clear if the language of section 22 is compared with that of section 17 of the Sind Urban Rent Restriction Ordinance, 1959, according to which an order for eviction of a tenant is to be executed by the Controller "as if it were a decree of a Civil Court", Consequently, a party seeking to challenge such proceedings on the ground of fraud does not appear to be precluded under section 12(2) or rule 103. Of. Order XXI of the C.P.C., to file a suit in this regard since the proceedings before the Rent Controller are not covered by the language of the above said provisions of the C.P.C. I am further fortified in my view by a recent judgment of this Court in M.Yousuf v. Wali Muhammad and another 1984 CLC 1690 wherein Naimuddin, J. (as he then was) while placing reliance on Malik Muhammad Shafi v. Muhammad Saleem PLD 1982 Lah 702 has held as under:- "8. I may also refer to Malik Muhammad Shafi v. Muhammad Saleem, wherein the question cropped up before a learned Single Judge of Lahore High Court whether a suit against the same on the grounds mentioned in section 12(2), C.P.C. Was barred thereunder. It was ruled that it was not.
10. ' I may here quote the relevant observations: "It was contended by learned counsel for the ;petitioner that the provisions of subsection (2) of section 12 'of the Code of Civil Procedure were not attracted to proceedings before a Rent Controller and, therefore, the suit brought by the petitioner was not hit by those provisions,. In view of the words "suit", "Court", "Code", "judgment" and "decree" used in section 12 it appears that its provisions apply to suits and not to applications made to the Rent Controller under the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance. I, therefore, agree with the learned counsel that the suit brought by the petitioner was not barred by subsection
(2) of section 12 of the Code of Civil Procedure."
11. I am, therefore, clearly of the view that the application of the applicants under Order VII, rule 11, C.P.C. Was completely misconceived as the suit filed by the applicant was clearly not barred under any of the provisions of the C.P.C. And I find no illegality or infirmity in the order passed by the learned Additional District Judge, Karachi.
12. ' For the aforesaid reasons this revision application is dismissed with costs.